Good to know – Interesting cases from our Rights Clearance Department

Good to know – The right of quotation

BE FAIR, AND PLAY BY THE RULES!

An exception to copyright law exists, but is all too frequently misapplied: the right of quotation. Works protected by copyright may be used for the purpose of quotation. This can apply to academic works, news reports, satires, parodies or documentaries dealing with the topic under discussion. Countries including the USA and Israel also allow quotation in teaching and educational materials and by search engines.

The key concept here is fair use: quotations from works protected by copyright must be used within the framework of an independent work on the topic. Assembling “collections of quotations” is not covered. While no fixed rule exists that would define exactly how much can legitimately be cited from another work, borrowing too much will not be judged to be covered by “fair use” if a dispute arises. Even when sources are given, one may not use third-party material to embellish one’s own work.

As is always the case, rules differ and are interpreted differently in different places. As such, whether footage can be used for the purpose of quotation, and the form it can be used in, must be determined individually on a case-by-case basis to avoid unpleasant surprises. We would be happy to help you with this.

Good to know – Using famous personalities

DENTAL CARE THE CLOONEY WAY

“Stars are public persons, so using footage of them is fine.” True or false? The law on using footage of persons of public interest is ambiguous even in such tightly-regulated countries as Germany. Different spheres of law intersect here: freedom of opinion and press freedoms collide with privacy and publicity rights. But a rule of thumb can be derived from the numerous cases which have arisen:

When images or audio from people who have become famous because of their status, office, talents or exploits (such as politicians, artists, actors, or sportspeople) are used in the context in which the individuals in question have reached prominence, the public interest in information is generally valued more highly than the right of individuals to privacy.

George Clooney and his wife walking on a red carpet could legitimately be used (in an editorial context) to illustrate the topic of George Clooney as an actor.
But if the same material was intended for use in an advertising context, say to suggest that George Clooney has a preference for a particular toothpaste, Mr. Clooney could raise objections. He would most certainly be in a position to raise objections if a marital row captured on camera by chance were to be shared with a wider audience (private sphere!) But if the marital row just so happened to take place on the red carpet – well, that would be a different story again.

Good to know – Indemnity against liability

WHEN RIGHTS CANNOT BE CLEARED

Identifying and tracing rights holders sometimes proves impossible. This is typically because the identity of persons portrayed is unknown, or because a person cannot be contacted even after numerous attempts. In some cases, the time and place of a person’s death are unknown, so the relevant post-mortem publicity rights cannot be applied.

Does that mean that images or footage cannot be used? Not necessarily: we have the expertise and the experience to gauge the degree of risk involved reliably. If it is high, you still don’t need to risk your own neck when using protected works: we can offer you an indemnification agreement which ensures any claims for damages will be against Framepool and not against you. In this case, you bear no risk whatsoever.

The indemnification fee depends on the degree of risk involved and is calculated on a per-project basis, taking many relevant factors into account. They include the type and duration of use, geographical dissemination (national, continental, global), whether persons are contemporary or historical figures, and their significance for the general public and within the images. The fee applies to all third-party rights within a given project that cannot be cleared.

Note: We clear all rights. And when rights clearance is impossible, we still have solutions.

Good to know – Advertising in images

WHEN FOOTBALL TURNS INTO A HIGH-RISK SPORT

The UEFA European Championship is over, and fresh footage is now trundling in of the games, the players and… their sponsors.

It is practically impossible to keep the omnipresent logos, slogans and names of advertisers out of the picture. While one might expect companies to be grateful for their valuable advertising receiving an additional airing after the event, it would be unwise to rely on this effect: suing for damages for unauthorized use is the more lucrative option for companies.

Make sure nobody uses you to refinance their investment in advertising by ensuring third-party rights are clarified before footage is used. In addition to the usual rights of persons to their own likeness (players, officials, fans etc.) and event rights, clarifying brand rights is crucial when advertising for companies is visible in images or footage (be it as logos or slogans on perimeter advertising or on jerseys, scoreboards etc.). Note that this also applies to royalty-free footage! But you don’t need to worry: we can take care of this – for our own footage and, on request, for footage from other sources.

Suing for damages for unauthorized use is a lucrative option for companies.

Good to know – How to estimate licensing fees

Talent fees can rain on your parade

Predicting licensing fees can feel like a game of cat and mouse: the other side usually wins. To boost your chances of cracking this conundrum, talk to us before mentioning figures!

One recent example from our Rights Clearance activities involved two scenes from famous cartoons that were intended to play a central role in a commercial. The ad agency reckoned the total fees for both shots would barely run into five figures, but the actual fees turned out to be ten times that – for each clip! With discrepancies on that scale, brokering agreement is almost impossible even when rights holders are willing to offer very generous “quantity rebates” and customers are very understanding. So the project is dead in the water.

We offer a free service to spare you from such embarrassing late discoveries: describe your project to us, ideally using a mood film, and we will tell you whether it is feasible and what conditions and fees you will probably need to reckon with.

Note:

Rights clearance issues and licensing fees for third-party rights can arise even in connection with royalty free footage: rights which may need clarification can include not only personality rights, but also audio rights, brand names and brands visible in images, logos of third-party companies (common in sports footage!), event rights, third-party copyrights etc.

License fees for copyrighted external material (not offered via an agency) and other third-party rights are typically determined on the basis of the
total budget of a campaign and on its expected reach (media plan).

Talent fees are often determined on the basis of the most expensive person in the clip ("MFN" – Most Favoured Nation Clause).

Fees vary greatly depending on the rights holder and the media plan. Attempting to predict them in advance can be a game of roulette.

We offer you

our experience for an estimate (free),

our expertise for rights clearance (450 euros per right), and

our finesse in negotiations (on a commission basis).

So:
Don’t rely on your 50/50 lifeline when you need to secure rights and large amounts of money are at stake. Use Framepool as your “phone a friend” lifeline instead!

Good to know – Rights clearance instead of lawsuit

30 million US dollars compensation...

… have been claimed by soccer star Pelé for violation of his personality rights in a Samsung ad, which, oddly, he is not even seen in.
However, the claim is legitimate! As we previously reported, all personal rights need to be cleared, even if a double is used or if a typical symbolic action is reproduced (in Pelé’s case: his famous side scissors kick).

Clearing all rights for any possible usage in any corner of the world is a very challenging task, and therefore seldom offered by footage companies. Many exclude responsibility for personal and other third party rights in their contracts and GTCs.

This means that footage buyers might have to clear third party rights themselves and consequently bear any liability for the usage. Depending on the country or even the continent and its corresponding jurisdiction, lawsuits can quickly become very unpleasant and costly..

Whether or not the high sum of Pelé’s claim for damages is justified, has to be determined by the courts. But one thing is certain: Samsung and the advertising agency could have prevented high costs, extra efforts, loss of not only reputation but most likely some of their employees, had they thought about rights clearance right from the start.

Within the 15 years since founding Framepool, we have always made a point of clearing all necessary usage rights, or of backing the footage usage with an indemnification insurance. We are proud to say, that this insurance has never gone into action and that we have continuously been able to protect our clients and filmmakers from legal claims. An effort we plan to carry on in the future.

Many footage companies exclude responsibility for personal and other third party rights in their contracts and GTCs. Samsung Ad with Pélé double (Photo: Webber Represents)

Good to know – The legal situation with simulated scenes

Beware!

You got THE idea for your new project. You need a testimonial, maybe from a celebrity – but stars are very expensive these days and picky to boot. So the thought of simulating a scene can be very tempting.

It sounds simple: dark glasses, a sharp hat and some smooth moves – and you already have "Michael" dancing through your project. Blond curls, sexy halter top dress, a wind machine and we have a "Marilyn". Want to create the "Godfather" making an offer no one can refuse? All you need is to find the right smoky voice.

Quite a pity then that none of this is allowed. Well, the copying actually is, but not any usage or publication within your production. This is because the laws of personality rights do not only protect any original image, film and video shots of a person, but also simulated scenes, which contain deliberate recognition of a person. The protection applies to imagery of people and celebrities who are alive, but also in many cases to those who are dead.

For example, you are not allowed to use either Marilyn Monroe herself or her double as a testimonial, because re-enactment of popular scenes falls under the same copyright protection as the original scene. The same goes for words (e.g. speeches) and other imitations. All usages have to be cleared by the copyright owners prior to any implementation to a secondary production.

You will be on the safe side, if you contact us in the early stages when bringing your ideas to life. We are here for you to provide knowledgeable support and clearance service!

The laws of personality rights do not only protect any original image, film and video shots of a person, but also simulated scenes, which contain deliberate recognition of a person.

Good to know – "Freedom of panorama"

Nice prospects!

When it comes to the publishing of imagery depicting property in public places, it seems that the concept of freedom of panorama might not be quite as liberating as it seems - with legal restrictions differing from country to country. Here is a brief overview of what is allowed in specific countries concerning the filming and usage of images and footage of property protected by copyright.

The rules in the USA, the UK, Japan, Spain, the Netherlands, Germany, Austria, and Switzerland are: if a building is filmed from a public space, any usage is permissible. But be careful: restrictions might apply for pieces of art, interiors, and constructions which are not labeled as architectural works (like bridges and dams). As you can imagine, there are also plenty of restrictions for military sites.

France, Belgium, Luxembourg, Greece, and Italy do not provide any freedom of panorama. A filming permit and authorisation of use is required for just about everything. Sometimes restrictions even apply for different points of view.

So remember to stay informed and to plan in a little extra time for the required authorities and paperwork. Or check with us: for stock footage that’s rights cleared and ready to use.

France, Belgium, Luxembourg, Greece, and Italy do not provide any freedom of panorama.

Good to know – Legal conditions when shooting drone footage

Airspace ≠ legal vacuum

We continue to receive numerous inquiries about drone footage featuring breathtaking manoeuvres. For example: circling just above the heads of people at events, shooting through the air between skyscrapers, interfering with flowing traffic on a busy freeway or chasing extreme sports athletes from just a couple of inches behind their back.

Cool shots, but often impossible to get, as production procedures tend to be illegal in many cases. There are good reasons why shooting such footage is limited by law, as we just experienced at the Alpine Skiing World Cup in Italy, when a drone crashed by a hair's breadth into one of the champion skiers. (Photo: ORF)

At the moment, the rules for operating UAVs (unmanned aerial vehicles) vary not only from country to country, but can also differ regionally. Filming drone operators will need more than talent and technical know-how: a valid pilot license, as well as shooting permits and an extensive liability insurance.

These days, the legal requirements change daily, so filmmakers need to be up-to-date on the rules before conducting a shoot with a camera carrying drone. Framepool offers you pre-produced, stress-free drone aerials that can tell your story without any risk. Here are some samples:
Fascinating drone footage from all over the world

Filming drone operators will need more than talent and technical know-how: a valid pilot license, as well as shooting permits and an extensive liability insurance.(Photo: ORF)

Good to know – Facts about personality rights

Incidental portrayal

To what extent do publications bear a legal risk, if people are depicted in an image accidentally? A common rule is: if individuals in public places are only a circumstantial part of an image, are interchangeable, and not the focus of the image, the personality rights of those people may not need to be cleared for many image uses.

The rule is different if specific individuals are, for example, singled out of a gathering of people. In such a case, we identify such a footage clip on our website with an indicator. The clip still can be used for a variety of projects, but if unsure, Framepool can help with estimating the risks or by taking over the liability against an indemnification fee.

A common rule is: if individuals in public places are only a circumstantial part of an image, are interchangeable, and not the focus of the image, the personality rights of those people may not need to be cleared for many image uses.

Good to know – What is the difference between “Rights Managed” and “Royalty Free”?

What in the world is RM and RF?

An embarrassing mishap that happened not too long ago in Germany is the nightmare of every producer: The liberal party FDP, created their campaign ads with an image of exactly the same happy family as the right wing extremists of the NPD. And to top it off: so did a Finnish curd cheese producer. Shit happens!

With Royalty Free (RF) footage, the risk of finding the same footage and photo material in other productions or in unpleasant context can be relatively high. Anyone is able to buy this material from multiple archives for a flat rate without declaration of the exact usage. Happy families taking a bike ride are a typical example of the standardized and common content of RF material.

Film material offered as Right Managed (RM) footage is more sophisticated and most often exclusively available through only one footage agency. With RM licenses, the use of each clip will be individually calculated under observance of the distribution outlets (for example TV broadcast, Internet, Cinema), territorial reach, and duration of the intended usage.
To make sure that the material in question is not further used in any undesired context, obtaining the exclusive rights of the footage for a specific territory or time frame is sometimes available at an additional fee. You can also always request information about the usage of your selected footage material within other productions and campaigns. This way you won’t have any unpleasant surprises.

What can a liberal party, right wing extremists, and Finnish curd cheese have in common? The Image. (Featured image from a FDP spot)

Good to know – Postmortem personal rights

Death in Venice

The right to privacy – any person has the right of being protected in regard to name, image, and likeliness. Third party rights of people being depicted in video images or photographs have to be cleared before any usage, in addition to the copyright of an image. Prevailing legal norms of the country in which the person resides dictate any possible usage in regard to personal rights, but not the legal position of the country in which a publication is intended and as we find it with copyright laws.However, what would the legal situation be after a person has passed away?

Well, that depends on where and when a person died:
Where? Regulations act in accordance with the country in which the deceased spent most of his/her recent life, however this might not be the persons nationality or registered residence.
When? Almost every country appoints different terms when it comes to the period of time, in which relatives of a deceased person have the right to and may agree to a publication. In Germany, the time span is set at just 10 years, while successors in Spain can intervene for up to 80 years after the death of a person. In contrast, England, France, and Japan do not offer any protection in regard to postmortem personal rights for the publication of imagery. The USA leaves posthumous rights of publicity at state level – New York does not recognize any rights, while California law provides 70 years, and Indiana even 100 years of protection after a persons death.

Now, what if somebody lives and dies in Venice? As often found in the typical world of law, there is no definite answer. In theory Italy, as well as Russia, have not yet set any specific time limit for postmortem personal rights. However depending on the usage of the imagery and complexity, there are many ways to make it happen and to receive third party rights clearance without extensive roadblocks.
We are here to help.

Almost every country appoints different terms when it comes to the period of time, in which relatives of a deceased person have the right to and may agree to a publication.

Good to know – Copyright judgement

"Happy birthday, Mr. President"

The good news: The world famous song "Happy Birthday to You" might be common property very soon, the rights to the song no longer belong to (is this right? Not sure what you are trying to say) Warner/Chappell Music. Would Marilyn Monroe now be able to sing for the president again?

The bad news: It's not yet a done deal. So far, the verdict of the judge in Los Angeles only means that the world’s (probably) most popular song can be sung at your office birthday party. At least until the copyright of the song is fully cleared, or until the end of next year - then the 70 years for the protection of rights of the creator will expire. All filmmakers who had to pay a lot of money for a few seconds of "Happy Birthday" since can count themselves happier from then on.

Good to know – Licensing rights for the Eiffel Tower

The city of love by night

She swoons as she whispers “Je t’aime” and falls into his strong arms. The camera pans away from the loving couple, to the spectacularly illuminated Eiffel Tower and… CUT!

Great, lovely. There’s just one problem. The Eiffel Tower’s operating company owns the copyright to the illuminations of this famous Parisian landmark, which was installed by Pierre Bideau in 1985, and therefore has a say in any commercial use, be it a feature film, a documentary or a simple photo.

So either you shoot your love story by day or we sort out the problems concerning the rights for you! If you want footage of the Eiffel Tower,
here it is

The Eiffel Tower’s operating company owns the copyright to the illuminations of this famous Parisian landmark.

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